Immigration UK – Breaks in the 10 years period

If either of these periods is broken, the individual may be refused indefinite leave to remain under the long residence rules. These periods will be broken if any of the following apply:

  • The individual was outside of the United Kingdom (England, Northern Ireland, Scotland and Wales) for any length of time during the period unless he or she had leave to enter or remain at the point of departure and return.
  • The individual was outside of the UK for any length of time during the period and when departing he or she then demonstrated a clear intention not to return or could have had no reasonable expectation of being able to return lawfully.
  • The individual was outside of the United Kingdom for a total of 18 months or more during the period.
  • The individual spent any time in prison or other institution (e.g. a Young Offenders’ institution) as a result of a custodial sentence imposed by a court during the period.

The 20 years period will be broken if any of the following was served on the individual or his or her representative during that period:

  • a notice that the individual is liable to be removed
  • a decision that the individual should be removed
  • a notice that it is intended to deport the individual

 

Suitability requirements under paragraph 276ADE

To satisfy the suitability requirement of paragraph 276ADE the applicant must show that they do not fall for refusal under any of the suitability grounds in Sections S-LTR 1.2 to S-LTR 2.3 in Appendix FM (See related links).

The application must be referred to the criminal casework directorate (CCD) for a decision if the applicant has been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months.

If the applicant has been convicted of an offence or offences for which they have been sentenced to less than 12 months’ imprisonment, you must consider whether the person’s presence in the UK is not conducive to the public good because their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.

For further information on ’serious harm’ and ’persistent offender’, see related link: Criminality requirement for Article 8 ECHR cases. Any cases which could potentially fall within this category must be referred to the complex casework team who will consider the case.

 

Private life requirements:

  • Has lived continuously in the UK for at least 20 years (discounting any period of imprisonment).
  • Is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment).
  • Is aged 18 years or above and under 25 years and has spent at least half of their life residing continuously in the UK (discounting any period of imprisonment).
  • Is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which they would have to go if required to leave the UK.

 

Breaks in Lawful residence

  • Continuous lawful residence is not broken if the applicant has a gap of leave outside the UK of less than six months. For example, applicants who leave the UK before their valid leave expires and obtain fresh entry clearance and re-enter the UK do not break continuous lawful residence, providing the absence from the UK is less than six months. See example 1 below.
  • Continuous lawful residence is broken if the applicant:
  • has a gap of leave of six months or more, or
  • departs the UK after their valid leave has expired.

 

Discretion for breaks in lawful residence (DOES THIS APPLY?)

  • You must always discuss the use of discretion with a senior caseworker. You must be satisfied that the applicant has acted lawfully throughout the whole 10 year period and has made every effort to obey the Immigration Rules. The decision to exercise discretion must not be taken without consent from a senior executive officer (SEO) or equivalent.

 

Single gap in lawful residence

It may be appropriate to use discretion if an applicant:

  • has a single short gap in lawful residence through making one single previous application out of time by no more than 10 calendar days, and meets all the other requirements for lawful residence.
  • You can use your judgement in cases where there may be exceptional reasons why a single application was made more than 10 days out of time.